DiLeo v. Board of Regents of the University of Colorado

590 P.2d 486, 196 Colo. 216, 1978 Colo. LEXIS 576

• Court: Supreme Court of Colorado
• Decided: August 28, 1978
• Docket: 27455
• Status: Published

Opinions

MR. CHIEF JUSTICE PRINGLE

delivered the opinion of the Court.

This case involves a challenge to the constitutionality of the Special Academic Assistance Program (S.A.A.P.) as established and administered by the University of Colorado School of Law.

The law school’s program is set forth in article 6 of the Rules of the law school. Rule l-6-2(c)(ii) establishes the standards for eligibility for the program and reads in pertinent part as follows:

“[A] program designed to identify prospective law students who appear to have the intellectual ability to graduate from this law school but would not otherwise be eligible for admission under normal admission standards, and who are members of identifiable groups which have not had adequate educational and cultural opportunities available to them and which are seriously underrepresented in the legal profession. It is understood that Negroes, Mexican-Americans and American Indians are such groups, members of which may be expected to constitute most, if not all, the participants in this program. It is not intended, however, to preclude participation by members of other identifiable groups which are shown to fit within the standards set forth in the first sentence of this subsection.” (Emphasis added.)

Groups which meet the, listed criteria are selected by reviewing various materials, primarily census bureau data, which reflect such information as median and per capita income, education level and representation in the legal profession. Both national and regional figures, when available, are reviewed. Regional figures in particular are used in assessing representation in the legal profession.

Using this method of review, the law school determined in 1974 that Asian Americans and Italian Americans did not fit the program’s criteria, at that time. The group of Italian Americans was defined as foreign born or native born with one foreign born parent.

In 1975, it was determined that Cubans and Hawaiians were not to be included in the program but that Puerto Ricans would be included.

Applicants for the S.A.A.P. are screened to determine whether they are members of an eligible group. The S.A.A.P. is a competitive admissions program for those eligible and both subjective and objective criteria are used in evaluating eligible applicants.

The approximate number of students to be admitted is determined in advance, based on available facilities. This predetermined number of spaces is only filled if there are qualified applicants available. We do not here determine whether this use of a predetermined number affects the constitutionality of the program because we decide the case on another issue.

Plaintiff DiLeo applied for admission to the law school through the S.A.A.P. for the entering class of 1973 and subsequently for the entering class of 1974. In both years, the application was rejected on the basis that he was not a member of an identifiable group having inadequate educational and cultural opportunities and seriously underrepresented in the legal profession. Following these two rejections, DiLeo brought this action in the District Court of Boulder challenging the S.A.A.P.

The trial court in granting the law school’s motion for summary judgment, held that DiLeo did not have standing to challenge the constitutionality of the program itself since if there were no S.A.A.P. he would not have been admitted to the law school. The trial court, stating that DiLeo could only challenge the exclusion of his group from the program, also held that the law school had not acted arbitrarily or capriciously in excluding the group of which DiLeo was a member from eligibility in the program.

The case is now before us on appeal and we affirm the trial court’s ruling to the extent it holds that DiLeo’s application was properly rejected for consideration in the S.A.A.P.

The case before us presents a sensitive and complex issue, an issue the resolution of which has important moral and social consequences. The law school has established the S.A.A.P. to increase minority enrollment and minority representation in the legal community. Similar programs have been established by colleges and universities throughout the nation to remedy the effects of past societal discrimination.

DiLeo claims that the program as established and operated by the School of Law of the University of Colorado is unconstitutional. He argues that while a program for the disadvantaged is itself constitutional, the S.A.A.P. as administered by the law school is unconstitutional in that it operates to exclude persons solely on the basis of their race or ethnic background. Specifically, he argues that he being of Italian American heritage and a product of slum schools, was educationally, socially and economically disadvantaged and should have been considered an eligible applicant for the S.A.A.P.

The essence of Plaintiffs Fourteenth Amendment argument is that the law school violated his right to equal protection of the laws by denying him admission to the law school while admitting applicants who he claims were similarly situated.

While this case was pending before us, the United States Supreme Court issued its decision in Regents of the University of California v. Bakke,_U.S._, 98 S.Ct. 2733,_L.Ed.2d_ (1978). In Bakke, the Court reviewed a challenge to the validity of a medical school’s special admissions program. The result of this review was that the Medical School of the University of California at Davis was ordered to admit Alan Bakke to the school.

Alan Bakke, a white male, alleged that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, a provision of the California Constitution, and §601 et seq. of Title VI of the Civil Rights Act of 1964. The Bakke case reached the Court in a posture where Alan Bakke was considered qualified for regular admission and would have been admitted to the medical school but for the special admissions program.

There was no majority opinion of the Court in the Bakke case. Only five of the Justices actually addressed the constitutional issue. Four of these Justices (Brennan, White, Marshall and Blackmun) found that the special admissions program did not violate the Constitution. These Justices concluded “that Davis’ goal of admitting minority students disadvantaged by the effects of past discrimination is sufficiently important to justify use of race-conscious admissions criteria.”_U.S at_, 98 S.Ct. at 2789,_L.Ed.2d at_(1978).

Mr. Justice Powell, who announced the judgment of the Court, found that the special admissions program served a compelling state interest¹ but that a racial “quota” was not necessary to achieve this interest. However, he did determine that the competitive consideration of race and ethnic origin might properly be a part of an admissions program.

Mr. Justice Stevens, in an opinion joined by Chief Justice Burger, Mr. Justice Stewart and Mr. Justice Rehnquist, determined that Title VI applied and that Bakke was excluded from the medical school in violation of Title VI. These Justices did not reach the constitutional issue of whether race can ever be a factor in an admissions policy. Whether in the absence of Title VI considerations, or given an amended version of Title VI, any of these Justices might join the Fourteenth Amendment conclusions of Justices Brennan, Marshall, White and Blackmun is yet to be decided.

The law school asserts that the decision in Bakke does not mandate DiLeo’s admission to the law school. We agree.

The threshold question to be addressed is whether DiLeo has standing to challenge the constitutionality of the S.A.A.P. The general rule as developed in Colorado is that a person to have standing to challenge the constitutionality of state actions must be personally adversely affected by the particular constitutional defect asserted. E.g., People v. Stage, 195 Colo. 110, 575 P.2d 423 (1978); Garcia v. City of Pueblo, 176 Colo. 96, 489 P.2d 200 (1971); People v. Stark and Peacock, 157 Colo. 59, 400 P.2d 923 (1965). The following language from McKinley v. Dunn, 141 Colo. 487, 492, 349 P.2d 139, 142 (1960) is instructive in this regard:

“We follow the generally accepted rule that constitutionality is to be considered only in the light of the standing of the party who seeks to raise the question and that a person may challenge the constitutionality of a statute only when and as far as it is being or is about to be applied to his disadvantage. Cross v. Bilett, 122 Colo. 278, 221 P.2d 923.” (Emphasis added.)

The trial court’s finding that DiLeo had no standing was based on its view that in effect there would be no remedy available for DiLeo even if the court agreed with his allegations of unconstitutionality. We agree.

Initially we note that Philip DiLeo is not in a similar position to Alan Bakke in that “but for the existence of the special program” Bakke would have been entitled to the educational benefit of admission to medical school. It is clear from the record that DiLeo would not have been eligible for admission to the University of Colorado School of Law under normal admissions standards.² Thus even if the S.A.A.P. were unconstitutional in respect to an applicant who like Bakke would have been admitted if there were no special admissions program, DiLeo is not situated so as to make that challenge.

In fact, DiLeo does not want the special admissions program to be declared unconstitutional. Rather, he wants it to be redrawn along nonracial lines. The program as established by the law school is drawn along group lines. For example, one of the principal criteria of the program is that the applicant be a member of a group which is underrepresented in the legal community. DiLeo asks us to declare unconstitutional this group aspect of the program. But this would be in effect to strike down the program as presently constituted. It is not the proper function of a court to establish an admission program for a university, nor to rewrite the program according to its own notions. Thus the import of DiLeo’s argument would be to leave the university with no special admissions program. Since DiLeo would not be admitted through the regular admissions program, a successful challenge to the program’s constitutionality would leave DiLeo’s position unchanged.

Our holding in Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969), is applicable at this point. In Lee we noted that the defendant had no standing to raise an equal protection argument because the “[defendant could not benefit in any way by such a ruling here and, therefore, is in no position to raise the issue in this case.” 170 Colo, at 273, 460 P.2d at 799. DiLeo is in this same position. He cannot benefit from a ruling that the special admissions program is unconstitutional; therefore, he has no standing to raise that issue.

We affirm the ruling of the trial court.

MR. JUSTICE ERICKSON dissents.

MR. JUSTICE CARRIGAN does not participate.

1 Powell found that the attainment of a diverse student body was compelling in the context of a university’s admissions program. The United States Supreme Court has previously recognized the importance of this goal. In Sweatt v. Painter, 339 U.S. 629, 634, 70 S.Ct. 848, 850, 94 L.Ed. 1114, 1119 (1950), that Court stated:

“Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. New students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and exchange of views with which the law is concerned. . . ,[W]ith such a substantial and significant segment of society excluded. . . we cannot conclude that the education offered ... is substantially equal. . . .”

Accord, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), vacated as moot, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

2 In fact it is not clear that even if DiLeo had been considered eligible for the S.A.A.P. he would have been admitted. In 1973, of 59 applicants who were offered admission through the S.A.A.P., 50 had higher prediction indexes than DiLeo and 24 applicants who were members of eligible groups and had higher prediction indexes than DiLeo were denied admission. (A prediction index is a composite factor which is derived by combining in a mathematical formula (1) the applicant’s grade point average, (2) a quality rating of the applicant’s degree school, (3) the applicant’s LSAT score, and (4) the applicant’s writing ability score.)